Project Posner

Lead opinion by POSNER

   MEMORANDUM OPINION AND ORDER

   RICHARD A. POSNER, UNITED STATES CIRCUIT JUDGE, SITTING BY DESIGNATION

   This order disposes of four motions by the Plaintiffs concerning various discovery disputes, a motion to amend the complaint, and a motion to strike certain affirmative defenses.

1. Motion to Strike Defendant Jewel Food Stores Objection to Discovery and in the Alternative Motion for Leave to File Additional Discovery

   Plaintiffs have requested answers to their Third Set of Interrogatories, propounded on September 13, 1989; Defendants have refused. Defendants claim these interrogatories bring to 56 the total number of interrogatories requested by Plaintiffs, and that under Local rule 9(g), without leave of court, Plaintiffs are limited to 20 interrogatories. Plaintiffs claim Defendant's response is a tactic of delay; that the Local Rule refers to the total number of interrogatories within a set; and in the alternative, that this Court grant leave for Plaintiffs to request interrogatories beyond the limits of Rule 9(g).

   Defendants correctly point out that the language of Rule 9(g) is clear:

   No party shall serve on any other party more than twenty (20) interrogatories in the 2 aggregate without leave of the court.

The rule says nothing about a limit per "set" of interrogatories, as plaintiffs suggest; to the contrary, the rule requires a maximum of twenty "in the aggregate." Plaintiffs have provided no authority to indicate that the local practice deviates from this relatively clear local rule. Therefore, I DENY Plaintiff's motion to strike Defendant Jewel's objection to discovery.

   In the alternative, Plaintiffs ask me to grant the waiver spoken of in Rule 9(g). Plaintiffs have not supplied me with the interrogatories at issue (Defendants have); nor have they given reasons establishing good cause. I have reviewed the interrogatories, however, and in the interest of time will GRANT Plaintiffs motion directing Jewel to respond. If Defendants have any specific objection to the interrogatories in question, they may file them with me.

   Defendants notified Plaintiffs of their objection to the interrogatories on October 16, 1989; responses were due on October 20, four days later. Defendants are ordered to respond to the interrogatories on October 30, four business days following the issuance of this order.

2. Motion to Compel

   Plaintiffs next ask that I order 3 Defendants to produce certain documents requested but not yet, Plaintiffs claim, provided. Defendants' response is not altogether clear, but amounts to the claim that they have provided most of Plaintiffs request. This Plaintiffs deny; in particular, they claim that Defendants:

(a) have not provided any means of allocating hours among the individuals deprived of their vacation benefits;

(b) have not provided the value of lost personal day benefits for each identifiable class member;

(c) have not provided pension benefits information;

(d) have not provided accurate data as to wages paid to each class member and the amount that should have been paid to each class member.

   There is no doubt that Plaintiffs are entitled to the information they request; moreover, Defendants have had a reasonable opportunity to provide such information. The delays in providing this information are no longer excusable. I will not adjudicate the justifications for each separate delay in this six month discovery dispute. Instead, I order that Defendants certify to me, on October 30, 1989, that the information requested by Plaintiffs have been provided in a form usable by Plaintiffs. This information 4 includes:

   1. A listing of each class member including identifying information, a statement of the amount the individual was paid and the amount the individual should have been paid under the terms of the contract;

2. A listing of each class member who lost personal day benefits and the value of unused benefits that would have been received at termination had the unilateral benefit reductions not been implemented;

3. A listing of all class members who lost vacation benefits and the dollar amount the individual would have been entitled to for these lost benefits at the time of termination;

4. A list of all class members who lost pension contributions as a result of the unilateral wage and benefit cuts and the value of those lost pension contributions.

If this information has not been provided by October 30, 1989, or if once again the data provided proves to be flawed, I will not hesitate to sanction Defendant Jewel, pursuant to my power under Rule 37 of the Federal Rules.

3. Amendment to the Third Amended Complaint

   Plaintiffs move to amend their complaint by adding an "Outrageous Conduct" Count. Defendant's argue that this Count is "virtually identical" to a "Bad Faith 5 Breach of Contract" Count that was dismissed by Judge Aspen; that Judge Aspen warned Plaintiffs not simply to replead the "Bad Faith Breach of Contract" Count as an "Outrageous Conduct" Count without adequate factual basis, or they "would be inviting a Rule 11 inquiry." Nonetheless, Plaintiffs have replead the Bad Faith Breach of Contract Count as an Outrageous Conduct Count.

   If there really is no factual basis for the "Outrageous Conduct" Count, then of course Plaintiffs invite a Rule 11 inquiry; but that is true in any case. Plaintiffs need not plead the specific factual basis for the claim in this era of notice pleading; Defendants do not argue that the claim falls within the requirements of Rule 9(b). Rule 15 requires liberal amendment of pleadings, and since no prejudice to the Defendants has been shown, the amendment is GRANTED. If Defendants wish to dispose of the County, the proper motion is for Summary Judgment.

4. Plaintiffs' Motion to Strike Affirmative Defenses

   Plaintiffs move to strike three affirmative defenses that Defendant JEwel has reasserted in response to Plaintiffs' latest amended complaint. They claim each of these defenses has been considered and rejected 6 before by Judge Aspen. Defendants have not asked me to reconsider Judge Aspen's determination, but claim that the defenses are reasserted simply to preserve Defendant's rights on appeal.

   Judge Aspen's dismissal of these three defenses will be appealable upon entry of final judgement in this case; Defendants need not reassert them here in order to preserve this right to appeal. Plaintiff's motion is therefore GRANTED.

October 25, 1989